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August 1990
THE FEDERAL GRAND JURY:
EXCEPTIONS TO THE RULE OF SECRECY (PART I)
By
Austin A. Andersen
Special Agent, Legal Instructor, FBI Academy
AN HISTORICAL PERSPECTIVE
The modern grand jury was foreshadowed in feudal England
during the 12th century, when King Henry II created the Assize of
Clarendon in order to shift the power to prosecute from the
Church to the Crown. (1) Under the Assize, prosecutions were
initiated through an inquiry made by a body of 12 laymen, who
resided in the vicinity of the crime, to determine if persons
suspected of robbery, murder, or theft should be reported to the
royal sheriff. The accused could plead guilty, deny the charges,
or submit to the ``ordeal by water.'' (2) Under the third option,
defendants were innocent if they sank after being lowered by rope
into a body of water; if they floated, however, they were found
guilty. (3) Based on the harshness of this procedure, there is
little doubt that the grand jury was initially intended to be an
instrument of inquisition rather than a bulwark against
despotism.
Although the Assize was designed to augment secular
authority rather than to safeguard individuals from unfounded
accusations, the practice of using persons from the locale of the
crime to determine whether charges should be lodged against a
member of the community eventually provided a measure of
insulation against royal abuse of the criminal justice system. In
order to serve as a ``shield'' to protect individuals from the
prosecutive ``sword'' of the government, the grand jury gradually
gained independence from the King by adopting the practice of
hearing witnesses in private and swearing to an oath to keep the
proceedings secret. (4)
Part I of this article discusses the transplantation of
grand jury secrecy to the United States and examines the
underlying policy for secrecy concerning matters occurring before
Federal grand juries. It also analyzes exceptions to the rule of
secrecy that are of importance to law enforcement officers and
notes those instances when State and local police officers may
gain access to information derived from Federal grand jury
investigations. Part II explores the difficulties commonly
encountered in complying with the secrecy requirement and in
defining grand jury material and its disclosure.
EVOLUTION OF THE MODERN GRAND JURY
Viewed as protection from autocratic oppression, the grand
jury, deliberating beneath a veil of secrecy, was widely accepted
in American communities during the colonial rule of George III.
These local juries not only enabled the colonists to refuse to
prosecute political opponents of the British but also afforded a
means of protecting citizens against persecution by partisan
zealots. (5) After the United States achieved independence from
Britain, the use of grand juries was enshrined in the fifth
amendment of the Constitution, which begins, ``No person shall be
held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury....'' (6) The
language of the fifth amendment, however, does not make the
institution of a grand jury incumbent upon the States. Moreover,
the Supreme Court has held that the procedure in which a neutral
judge finds probable cause to charge and arrest is a sufficient
safeguard of a defendant's rights. (7) Therefore, States, unlike
the Federal Government, remain free to proceed with felony
prosecutions by means other than grand jury indictments.
Nevertheless, most States have incorporated into their
constitutions provisions for grand juries--as well as grand jury
secrecy (8)--which often closely resemble the Federal model. (9)
It is ironic that despite its historical significance, the grand
jury in England was abolished as a cost-cutting measure in
l933. (10)
Although the fifth amendment is silent on the issue of
secrecy, the practice was continued at common law (11) until
l945, when Congress codified Federal grand jury practice, including
secrecy and its exceptions, in Rule 6(e) of the Federal Rules of
Criminal Procedure (F.R.C.P.). Rule 7, F.R.C.P., specifies that
when the grand jury is used, an offense punishable by death must
be prosecuted by indictment. It also states that an offense
punishable by imprisonment for more than 1 year must be
prosecuted by indictment, unless waived, in which case, it may be
prosecuted by information; any other offense may be prosecuted by
indictment or information.
Rule 6(a), F.R.C.P., vests in the U.S. district court full
discretion to order one or more grand juries summoned as required
by the public interest. The Federal grand jury is composed of 16
to 23 jurors, with 12 votes needed for an indictment. (12) A
prosecuting attorney, rather than a judge or jury member,
presides over the daily operations. Rules of evidence are not
applicable, allowing the prosecutor the freedom to use evidence
which may not be admissible at trial to obtain an indictment, or
true bill. (13) All proceedings, except the deliberation and
voting of the jurors, must be recorded, and any recordings,
notes, or transcripts are placed in the custody of the attorney
for the government. The indictment is normally returned to a
Federal magistrate in open court, but it may be sealed until the
defendant is located and arrested. (14)
In part, secrecy of the grand jury is achieved by placing
limitations on who may be a participant. Rule 6(d) restricts
attendance at grand jury proceedings to attorneys for the
government, the witness under examination, interpreters when
needed, and a stenographer or operator of a recording device. No
provision is made for the presence of an attorney for either the
defendant or a witness giving testimony. While a witness'
attorney may not be present inside the grand jury room, the
witness may consult with the attorney outside the room at any
time, either before or in the course of responding to
questions. (15)
The general rule of secrecy, as set forth in Rule 6(e)(2),
F.R.C.P., forbids a grand juror, an interpreter, a stenographer,
an operator of a recording device, a typist who transcribes
recorded testimony, an attorney for the government, or any person
to whom disclosure is made by the attorney for the purpose of
assisting in the enforcement of Federal criminal law, from
disclosing ``matters occurring before the grand jury'' (a term
courts often use interchangeably with ``grand jury material''),
except as otherwise provided for in the rules. (16) A knowing
violation of the rule is punishable as a contempt of court. (17)
REASONS FOR GRAND JURY SECRECY
According to the U.S. Supreme Court, the general policy
which justifies the rule of secrecy is the grand jury's need
for freedom to pursue its ``dual function of determining if
there is probable cause to believe that a crime has been
committed and of protecting citizens against unfounded criminal
prosecutions.'' (18) Requiring a wide latitude of inquiry and
virtual independence from external distraction, the grand jury
has been described by the Supreme Court in 1919 as ``a grand
inquest, a body with powers of investigation and inquisition,
the scope of whose inquiries is not to be limited narrowly by
questions of propriety or forecasts of the probable result of
the investigation, or by doubts whether any particular
individual will be found properly subject to an accusation of
crime.'' (19)
In recognizing that the proper functioning of the grand
jury system depends on secrecy of the proceedings, the Supreme
Court, in United States v. Proctor & Gamble, provided even more
specific reasons for the rule of secrecy in 1958:
. ``To prevent the escape of those whose indictment may be
contemplated;
. to insure the utmost freedom to the grand jury in its
deliberations, and to prevent persons subject to
indictment or their friends from importuning the grand
jurors;
. to prevent subornation of perjury or tampering with the
witnesses who may testify before the grand jury and
later appear at the trial of those indicted by it;
. to encourage free and untrammeled disclosures by persons
who have information with respect to the commission of
crimes;
. to protect [the] innocent accused who is exonerated from
disclosure of the fact that he has been under
investigation, and from the expense of standing trial
where there was no probability of guilt.'' (20)
In 1983, the Supreme Court identified three types of danger
associated with the disclosure, absent a court order, of grand
jury information concerning a criminal proceeding to government
attorneys for use in related civil proceedings:
. Disclosure increases the risk of inadvertent or illegal
further release of information to unauthorized persons
and thus may threaten the willingness of witnesses to
testify fully and candidly;
. It threatens the integrity of the grand jury process
itself if there is a tendency for the government to
manipulate the grand jury's powerful investigative tools
to root out additional evidence useful in the civil
suit, or even to start or continue a grand jury inquiry
where no criminal prosecution seemed likely;
. The use of grand jury materials by government agencies
in civil or administrative settings threatens to
subvert the limitations applied outside the grand
jury context on the government's powers of discovery
and investigation. (21)
EXCEPTIONS TO THE RULE OF SECRECY
The exceptions to the rule of secrecy specifically set forth
in the text of Rule 6(e), F.R.C.P., are categorized according to
the reason for disclosure. Under the appropriate circumstances,
they provide various investigative options for Federal and State
law enforcement officers to gain access to grand jury material.
Witnesses
By failing to mention witnesses in the categories of
persons--jurors, interpreters, stenographers, typists,
attorneys--expressly prohibited from disclosing matters
occurring before the grand jury, Rule 6(e) eradicated the
previous practice of some Federal districts of swearing
witnesses to oaths of secrecy. (22) Making this exception
unequivocal is the admonition that ``[no] obligation of secrecy
may be imposed on any person except in accordance with this
rule.'' (23) The basis for this exception in the Federal system is
the elimination of any potential for hardship created by the
inability of a witness to reveal testimony to counsel retained to
protect the witness' interests. (24) Attempts by government
attorneys or other government personnel to muzzle witnesses
concerning their testimony before the Federal grand jury have
generally been construed by the courts as unwarranted and illegal
obligations of secrecy. (25)
Relieving witnesses from the obligation of secrecy lessens
to a degree the control of the prosecutor by allowing prospective
defendants, or targets, some opportunity to learn the direction
of the investigation. Therefore, a number of States have enacted
statutes prohibiting a witness from ever disclosing testimony
given before a State grand jury. Recently, the Supreme Court
held that insofar as a State law prohibits witnesses from
disclosing their own testimony after the term of the grand jury
has ended, that law violates the first amendment to the U.S.
Constitution. (26) While the grand jury is in session, however,
the Court suggested that the State's interests in preserving
grand jury secrecy may outweigh the competing first amendment
right of freedom of speech. (27)
Attorneys for the Government
Rule 6(e)(3)(A)(i) provides an exception to the rule of
secrecy for ``an attorney for the government for use in the
performance of such attorney's duty to enforce federal criminal
law.'' This exception is based on the prosecutor's practical
need to know what evidence is before the grand jury, as well as
the grand jury's need for the prosecutor's assistance and
guidance in its investigation. An attorney for the government
is defined as ``the Attorney General, an authorized assistant of
the Attorney General, a United States Attorney, [and] an
authorized assistant of the United States Attorney.'' (28) The
definition does not include attorneys for Federal agencies. (29)
Although the prosecuting attorney for the government has access
to the transcript of matters occurring before the grand jury,
the ability to disclose this material to others is limited by
the remaining exceptions set forth in Rule 6(e). Rule
6(e)(3)(C)(iii), for instance, allows disclosure by an attorney
for the government to another Federal grand jury. This
exception implies the ability of one government attorney to
disclose grand jury information to another government attorney
who is engaged in the enforcement of criminal law.
However, a government attorney may not under this exception
make a discretionary disclosure of grand jury material to another
government attorney for use in a related civil proceeding. (30)
Instead, civil attorneys must seek disclosure of such information
only ``when so directed by a court preliminarily to or in
connection with a judicial proceeding.'' (31) Such court-ordered
disclosures are made upon a showing of ``particularized need'' or
``compelling necessity,'' with the primary purpose of the
disclosure being to assist in the ``preparation or conduct of a
judicial proceeding.'' (32) Courts have held that ``judicial
proceedings'' do not include tax audits or preliminary agency
investigations. (33)
Government Personnel Assisting the Attorney for the Government
Rule 6(e)(3)(A)(ii) permits disclosure by the attorney for
the government of matters occurring before the grand jury to
government personnel assisting the attorney in the performance of
duties to enforce Federal criminal law. (34) This exception
provides the most common method of access to grand jury material
by Federal investigators; assistance to the attorney generally
consists of investigation or analysis in support of the grand
jury's efforts. Disclosure to government personnel assisting
the attorney includes not only Federal but also State and local
government employees, but only for the purpose of enforcing
Federal criminal statutes (as opposed to use in civil,
administrative, or internal agency matters).
Disclosure under this exception is made at the attorney's
discretion and does not require a court order. Such disclosure
is, however, subject to the following three restrictions:
. Any person to whom matters are disclosed cannot use that
grand jury material for any other purpose other than to
assist the attorney in matters concerning the
enforcement of Federal criminal law;
. The attorney must promptly provide the district court
before which the grand jury was empaneled with a list of
the names of all persons to whom disclosure has been
made;
. The attorney must certify that each person on the list
has been advised of the obligation of secrecy. (35)
An issue often arising under this exception is whether a
government employee who lawfully obtains grand jury material to
assist a government attorney may divulge that material to other
government personnel working on the same, related, or unrelated
Federal criminal investigations. Because the conditions of this
exception require the attorney not only to provide the court with
the names of persons on the disclosure list (36) but also to
certify that each person was advised of the obligation of
secrecy, it seems clear that assisting personnel must seek the
authority of the government attorney in order to make a further
disclosure of materials identified as matters occurring before a
grand jury.
Disclosure to Domestic Law Enforcement Agencies
It is often desirable for Federal and State authorities to
cooperate in investigations where jurisdictions overlap, such as
organized crime or political corruption. Therefore, Rule 6(e)
was amended in 1985 to allow Federal prosecutors to disclose
Federal grand jury matters to the personnel of law enforcement
agencies of ``a state or subdivision of a state'' when the
assistance of such personnel would be beneficial to the Federal
investigation. (37) This disclosure is governed by the discretion
of the government attorney and is subject to the same
restrictions that are applicable to Federal personnel assisting
the attorney. That is, all officers receiving such material
must be advised of the obligation of secrecy and the name of each
individual to whom disclosure is made must be promptly provided
to the court. (38)
The 1985 amendment to Rule 6(e) also made it possible for a
government attorney to disclose to an appropriate official of a
State or subdivision of a State evidence developed during a
grand jury investigation which relates to a violation of State
law. It is important to note, however, that this disclosure
(39) is accomplished by an order of the court rather than the
discretion of the attorney. Unlike the conditions for
disclosure to personnel assisting the attorney in a Federal
prosecution, disclosure of matters relating to a violation of
State law will be made ``in such manner, at such time, and under
such conditions as the court may direct.'' (40)
Disclosure to the Defendant
Upon order of the court, disclosure of grand jury material
may be made pursuant to a request of the defendant upon a
showing that grounds may exist for a motion to dismiss the
indictment based on matters which occurred before the grand
jury. (41) In addition, Rule 16(a) (1)(A), F.R.C.P., mandates
that upon request, defendants are entitled to a pre-trial
disclosure of any recorded statements made by them before the
grand jury which relate to the offense charged. Finally, a
defendant may have access to transcripts of grand jury testimony
of witnesses for the government after they have testified on
direct examination in the trial of the case.(42)
Part II of this article will examine the difficulties
encountered in disseminating grand jury material to foreign
police agencies and in defining grand jury material and its
disclosure.
FOOTNOTES
(1) Helmlolz, ``The Early History of the Grand Jury and the
Canon Law,'' 50 U. of Chi. Law Rev. 613 (1983).
(2) Kuh, ``The Grand Jury `Presentment': Foul Blow or Fair
Play?'' 55 Columbia Law Rev. 1103, 1106 (1955).
(3) Id. at 1107.
(4) The oath appeared as early as 1600. See Brown, ``The
Witness and Grand Jury Secrecy,'' 11 American Journal of Criminal
Law 169, 170-171 (1983).
(5) Id. at 170-171.
(6) U.S. Const. amend V.
(7) Hurtado v. California, 110 U.S. 516 (1884).
(8) Only three States (Alabama, Connecticut, and New
Hampshire) have no specific secrecy provision, S. Beale & W.
Bryson 1 Grand Jury Law and Practice 7:04 at 15.
(9) Note ``Grand Jury Secrecy v. The First Amendment: A Case
for Press Interviews of Grand Jurors,'' 23 Valparaiso Univ. Law
Rev. 559, 560-561 (1989).
(10) Id. at 564.
(11) See e.g., In Re Grand Jury Proceedings, 4 F.Supp. 283,
284-5 (E.D. Pa. 1933).
(12) Rule 6(a)(1), F.R.C.P.
(13) See Beale & Bryson, supra note 8 at 1:06, at 32.
(14) Rule 6(e)(4), F.R.C.P.; this provision allows law
enforcement officers to locate and arrest indicted individuals
who are apt to flee upon learning the details of a public
indictment.
(15) See, e.g., In Re Taylor, 567 F.2d 1183 (2d Cir. 1977);
see also, Waller, ``An Introduction of Federal Grand Jury
Practice,'' 61 Wisconsin Bar Bulletin 17, 19 (1988).
(16) Rule 6(e)(2), F.R.C.P.
(17) Id.
(18) Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972).
(19) Blair v. United States, 250 U.S. 273, 282 (1919).
(20) 356 U.S. 677, 681 n.6 (1958), quoting from United States
v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954), quoting from
United States v. Amazon Industrial Chemical Corp, 55 F.2d 254,
261 (D.C. Md. 1931). The passage is later referred to in United
States v. Sells Engineering, Inc., 103 S. Ct. 3133, 3140 (1983).
(21) Sells Engineering, supra note 20, at 3142-3143; and United
States v. John Doe, Inc. I, 107 S. Ct. 1656, 1663-64 (1987).
(22) See Notes of Advisory Committee on Rules, Note to
Subdivision (e), Rule 6, F.R.C.P.
(23) Rule 6(e)(2), F.R.C.P.
(24) Supra note 22.
(25) See, e.g., In Re Grand Jury Summoned October 12, 1970, 321
F.Supp. 238 (N.D. Ohio 1970); United States v. Radetsky, 535 F.2d
556 (10th Cir. 1976); In re Vescovo Special Grand Jury, 473
F.Supp. 1335 (C.D. Cal. 1979).
(26) Butterworth v. Smith, 110 S.Ct. 1376 (1990).
(27) Id.
(28) Rule 54(c), F.R.C.P.
(29) In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962).
(30) Sells Engineering, supra note 20, at 3140.
(31) Rule 6(e)(3)(C)(i), F.R.C.P. Use of this exception is not
limited to government attorneys; any party to a judicial
proceeding may petition the court to release grand jury material
in the interests of justice. This exception existed at common
law as well. In United States v. Socony-Vacuum Oil Co., 310
U.S. 150, 234 (1940), the Court noted that after the grand
jury's work in complete,``disclosure is wholly proper where the
ends of justice require it.''
(32) United States v. Baggot, 103 S.Ct. 3140, 3164 (1983).
(33) Id. at 3166. See also, Bradley v. Fairfax, 634 F.2d 1126
(8th Cir. 1980) (disclosure denied for parole revocation
hearing); United States v. Bates, 627 F.2d 349 (D.C. Cir. 1980)
(disclosure denied for agency investigation.)
(34) Rule 6(e)(3)(A)(ii), F.R.C.P.
(35) Rule 6(e)(3)(B), F.R.C.P.
(36) See Notes on Advisory Committee on Rules, 1985 Amendment,
Rule 6 (e)(3)(A)(ii) which states, in part, ``...because not all
federal government personnel will otherwise know of this
obligation [secrecy], the giving of the advice and certification
thereof is required as to all persons receiving disclosure....''
(37) Rule 6(e)(3)(A)(ii), F.R.C.P.
(38) Supra note 36.
(39) Rule 6(e)(3)(c)(iv), F.R.C.P.
(40) Id.
(41) Rule 6(e)(3)(c)(iv), F.R.C.P.
(42) 18 U.S.C. 3500.
____________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.